June 29, 2005

Trademark Owners Can't Control Your Desktop

Decision in Internet Ads Case Protects Consumers

New York - The Second Circuit Court of Appeals issued a decision this week that promises to prevent trademark owners from asserting control over the computers of consumers who visit the trademark owners' websites. The case, 1-800 Contacts v. WhenU, questioned whether it was a trademark violation for Internet "adware" company WhenU to provide users with software that gives them advertisements related to keywords found in their online searches. The Second Circuit found that the use of a trademark in software used to generate ads is not a "use in commerce" under trademark law.

The Electronic Frontier Foundation (EFF) filed an amicus brief in the case with the assistance of Professor Eric Goldman of Marquette University Law School. In it, EFF argued that consumers should not be prohibited by trademark law from installing software that allows them, when typing "1-800-Contacts" into a search engine, to see information (including advertisements) from the company's competitors as well as from the company.

"A trademark owner is not entitled to control your desktop just because you happen to be visiting its website," said Fred von Lohmann, EFF senior staff attorney. "This decision is good news for consumers who want the freedom to install tools that help them customize their web-surfing."

Online contact lens distributor 1-800 Contacts, Inc., won an initial preliminary injunction against WhenU.com, Inc., in October 2002, claiming that WhenU.com's SaveNow software confused potential customers by generating ads related to the words and web addresses users entered into online search engines and web browsers. WhenU.com appealed the lower court's ruling in December 2003, and the Second Circuit overturned the lower court's ruling.

Contacts:

Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

Posted at 11:09 AM


June 28, 2005

AcompliaReport.com Sues for Right to Use Trademark to Report on New Drug

EFF Files Suit to Protect Journalist From Legal Intimidation

San Francisco, CA - The Electronic Frontier Foundation (EFF) announced today that it has filed a lawsuit against French pharmaceutical giant Sanofi-Aventis Group on behalf of Medical Week News, publishers of the medical news website AcompliaReport.com.

EFF's lawsuit comes after Sanofi-Aventis, the world's third largest pharmaceutical company, threatened Medical Week News with legal action based on its use of the word "Acomplia" in its AcompliaReport.com website domain name.

Acomplia is the name of a Sanofi-Aventis drug intended to combat obesity and assist with smoking cessation that has shown promise in clinical trials in the United States and in Europe, and has just been submitted to the US FDA and European regulators for approval.

AcompliaReport.com is an independent online newsletter devoted to reporting news about the drug.

In the lawsuit, filed in US District Court in San Francisco, Medical Week News asserts its fair use right to use the word "Acomplia" in publishing independent news about the drug.

"Reporters, critics, and commentators all need to use trademarks in order to discuss and report on trademarked products and services," said EFF Senior Staff Attorney Fred von Lohmann. "Trademark law has always recognized that as a fair use when books and magazines do it. Publishers should enjoy the same fair use rights on the World Wide Web."

"People find information on the Web by entering the subject that is of interest to them in search engines," said Milton R. Benjamin, Publisher and President of Medical Week News. "People hear the word Acomplia on television and go to the Internet for more information. If we were unable to use the name Acomplia in our website, tens of thousands of people never would find the most comprehensive source of objective news and information about development of this drug."

Mr. Benjamin is a veteran journalist who has served in senior editorial positions at Newsweek and the Washington Post.

The lawsuit asks the court to declare that Medical Week News is entitled to continue to use the word "Acomplia" in the AcompliaReport.com domain name and website.

Contacts:

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org

Milton Benjamin
Publisher and Editor
Medical Week News
milt@medicalweek.org

Posted at 10:00 AM


June 27, 2005

Supreme Court Ruling Will Chill Technology Innovation

Copyright Liability Standard in Grokster Decision Endangers P2P and Other New Technologies

Washington, DC - Today the Supreme Court issued a ruling that could impede makers of all kinds of technologies with expensive lawsuits. The long-awaited decision in MGM v. Grokster states that P2P software manufacturers can be held liable for the infringing activities of people who use their software. This decision relies on a new theory of copyright liability that measures whether manufacturers created their wares with the "intent" of inducing consumers to infringe. It means that inventors and entrepreneurs will not only bear the costs of bringing new products to market, but also the costs of lawsuits if consumers start using their products for illegal purposes.

"Today the Supreme Court has unleashed a new era of legal uncertainty on America's innovators," said Fred von Lohmann, EFF's senior intellectual property attorney. "The newly announced inducement theory of copyright liability will fuel a new generation of entertainment industry lawsuits against technology companies. Perhaps more important, the threat of legal costs may lead technology companies to modify their products to please Hollywood instead of consumers."

The Supreme Court has also ordered the lower court to consider whether peer-to-peer companies Grokster and StreamCast can be held liable under the new standard. StreamCast is confident that it will pass muster under the new, multi-pronged test.

MGM v. Grokster was brought by 28 of the world's largest entertainment companies against the makers of the Morpheus, Grokster, and KaZaA filesharing software products in 2001. The entertainment companies hoped to obtain a legal precedent that would hold all technology makers responsible for the infringements committed by the users of their products. The Electronic Frontier Foundation (EFF), along with StreamCast counsel Matt Neco and Charles Baker of Porter and Hedges, defended StreamCast Networks, the company behind the Morpheus filesharing software.

The entertainment companies lost their case in District Court, then lost again on appeal to the Ninth Circuit Court of Appeals. The lower court rulings were based on the Supreme Court's landmark decision in the 1984 Sony Betamax case, which determined that Sony was not liable for copyright violations by users of the Betamax VCR.

Contacts:

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

Posted at 10:44 AM

MGM v. Grokster Decision Press Conference Today

Conference at Noon Eastern Time, Call-In Number Available to Press

What: Post-Grokster press conference, with members of the StreamCast (Morpheus) and Grokster legal team along with representatives from the technology industry and public interest groups.

When: 12 Noon EDT today, contacts below for phone-in line for press.

Who: Richard Taranto, who argued the case on behalf of Grokster and StreamCast (Morpheus) StreamCast CEO Michael Weiss and General Counsel Matthew Neco * Charles Baker of Porter & Hedges, representing StreamCast * Fred von Lohmann and Cindy Cohn of the Electronic Frontier Foundation * Michael Page of Keker & Van Nest, attorney for Grokster * Gigi Sohn, President and Co-Founder of Public Knowledge * Edward Black, President and CEO of the Computer and Communications Industry Association * Gary Shapiro, President and CEO of the Consumer Electronics Association

Why: Twenty-eight of the world's largest entertainment companies brought the lawsuit against the makers of the Morpheus, Grokster, and KaZaA software products, aiming to set a precedent to use against other technology companies (P2P and otherwise). As we noted in our arguments before the Ninth Circuit, the case raises a question of critical importance at the border between copyright and innovation: When should the distributor of a multi-purpose tool be held liable for the infringements that may be committed by end-users of the tool?

Background: The entertainment companies lost their case in District Court, and then lost again on appeal to the Ninth Circuit Court of Appeals. The lower court rulings were based, in part, on the Supreme Court's landmark decision in the 1984 Sony Betamax case, which determined that Sony was not liable for copyright violations by users of the Betamax VCR.

Contacts:

Art Brodsky
Communications Director
Public Knowledge
abrodsky@publicknowledge.org

Annalee Newitz
Policy Analyst
Electronic Frontier Foundation
annalee@eff.org

Brian O'Neal
Senior Director of Communications
StreamCast Networks
boneal@morpheus.com

Posted at 07:52 AM


June 21, 2005

Internet Entrepreneur Joe Kraus Joins EFF Board

Founder of DigitalConsumer.org Is a Perfect Fit for Digital Liberties Organization

San Francisco, CA - This week, the Electronic Frontier Foundation (EFF) welcomes the newest member of its executive board, Internet entrepreneur Joe Kraus. The founder of DigitalConsumer.org, a grassroots organization devoted to helping consumers get fair use access to digital media, Kraus has more than a decade of experience working on Internet-related ventures. He was a founder of Excite.com in the early 1990s, and he is currently the CEO of JotSpot, a maker of wiki-based applications. He is also an angel investor who works with early-stage technology companies.

"I think the work of EFF is critical to a thriving and innovative online world where people are free to create new technologies, content, and communities," said Kraus. "Without the EFF, the Internet would be a smaller, darker place."

EFF Executive Director Shari Steele said, "We're thrilled to have Joe on our board, and we look forward to getting his input into current and future EFF projects."

Other members of EFF's executive board include Brad Templeton, John Gilmore, Pam Samuelson, Lawrence Lessig, John Perry Barlow, Brewster Kahle, and Dave Farber.

Contact:

Shari Steele
Executive Director
Electronic Frontier Foundation
ssteele@eff.org

Posted at 02:24 PM


June 20, 2005

MGM v. Grokster Press Conference Following Supreme Court Decision

Note: The Electronic Frontier Foundation is participating in this press conference with other members of the Morpheus and Grokster legal teams and public interest groups. We are recirculating this press release from StreamCast (Morpheus) for your information.

What: Post-Grokster press conference, with members of the StreamCast (Morpheus) and Grokster legal team along with representatives from the technology industry and public interest groups including P2PUnited, Public Knowledge, the Computer & Communications Industry Association, and the Computer Electronics Association.

When: 12 Noon EDT on the day of the decision. The Court has already scheduled opinion announcements for 10:00a on June 20th, 23rd, 27th, and 30th, and may schedule additional days. If you are a member of the media and wish to phone into the conference, get in touch with one of the contacts listed below.

Who: Richard Taranto argued the case on behalf of Grokster and StreamCast (Morpheus)

StreamCast CEO Michael Weiss and General Counsel Matthew Neco

Fred von Lohmann and Cindy Cohn of the Electronic Frontier Foundation

Charles Baker of Porter & Hedges, attorney for StreamCast Networks

Michael Page of Keker & Van Nest, attorney for Grokster

Adam Eisgrau, Executive Director of P2PUnited

Gigi Sohn, President and Co-Founder of Public Knowledge

Edward Black, President and CEO of CCIA

Gary Shapiro, President and CEO of CEA

Why: In a case now before the United States Supreme Court about when if ever technology makers will be legally liable for the infringements committed by the users of their products, and whether entertainment companies will be able to slow or dictate the course of technology development, the makers of the Morpheus and Grokster Peer-to-Peer file sharing software are being sued by 28 of the world's largest entertainment companies.

Background: The entertainment companies lost their case in District Court, and then lost again on appeal to the Ninth Circuit Court of Appeals. The lower court rulings were based, in part, on the Supreme Court's landmark decision in the 1984 Sony Betamax case, which determined that Sony was not liable for copyright violations by users of the Betamax VCR.

Contacts:

Art Brodsky
Communications Director
Public Knowledge
abrodsky@publicknowledge.org

Annalee Newitz
Policy Analyst
Electronic Frontier Foundation
annalee@eff.org

Brian O'Neal
Senior Director of Communications
StreamCast Networks
boneal@morpheus.com

Posted at 02:37 PM

Upholding the Legality of Reverse Engineering

Judges Weigh Issues in Eighth Circuit Videogame Case

St. Louis, MO - Judges in the Eighth Circuit Court of Appeals heard oral arguments this morning in Blizzard v. BnetD, a case that pits the large videogame corporation against three game-loving software developers. The developers were sued because they created an open source program called BnetD, which lets gamers play popular Blizzard titles like Warcraft with other gamers online. Blizzard, which maintains its own game server called Battle.net, claims that these programmers violated its end user license agreements (EULAs) and the Digital Millennium Copyright Act (DMCA). The developers reverse-engineered a protocol used in Blizzard's Battle.net service in order to develop their program.

The BnetD engineers are being represented by the Electronic Frontier Foundation (EFF). Arguing on their behalf was EFF co-counsel Paul Grewal of Day Casebeer, assisted by EFF Staff Attorney Jason Schultz.

"The judges were struggling with the right questions," said Schultz. "They're trying to balance copyright interests with the right to reverse engineer. They clearly recognized the public interest in reverse engineering, but they admitted this would be a hard case to decide."

Congress expressly recognized the importance of reverse engineering when it created an exception to the DMCA for this activity. Whether it's allowing gamers to choose a better server for Internet play, or allowing a printer owner to purchase from a range of printer cartridge replacements, reverse engineering is a critical part of innovation in a world where more and more devices need to talk to each other in order to operate correctly.

An audio file of the oral arguments will be available here on June 21, 2005.

Contacts:

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org

Posted at 02:18 PM


June 16, 2005

Consumers’ Rights at Stake in Eighth Circuit Videogame Case

St. Louis, MO - On Monday, June 20, the 8th Circuit Court of Appeals will hear oral arguments in Blizzard v. BnetD, a case that could dramatically impact consumers' ability to customize software and electronic devices and to obtain customized tools created by others.

Along with co-counsel Paul Grewal of Day Casebeer, the Electronic Frontier Foundation (EFF) is representing three open source software engineers who reverse-engineered an aspect of Blizzard's Battlenet game server in order to create a free software game server called BnetD that works with lawfully purchased Blizzard games. The BnetD server lets gamers have a wider range of options when playing online. The lower court held that the reverse-engineering of the games needed to create this new option for consumers was illegal.

The 8th Circuit Court of Appeals will determine whether the three software programmers were in violation of the anticircumvention provisions of the Digital Millennium Copyright Act (DMCA) and Blizzard Games' end user license agreement (EULA). EFF will argue that the DMCA expressly protects the programming and distributing of programs such as BnetD and this protection cannot be undercut by general state contract law as applied to EULAs.

EFF took the case to stand up for consumer choice in the marketplace. Reverse engineering is often the only way to craft a new product that works with older ones. Congress expressly recognized this when it created an exception to the DMCA for reverse engineering. Whether it's allowing gamers to choose a better server for Internet play, or allowing a printer owner to purchase from a range of printer cartridge replacements, reverse engineering is a critical part of innovation in a world where more and more devices need to talk to each other in order to operate correctly.

The hearing will take place Monday, June 20, at 9 a.m. at the Eighth Circuit US Court of Appeals, 27th Floor, Southeast Courtroom, at the Thomas F. Eagleton Courthouse, 111 South 10th Street in St. Louis, MO.

Contacts:

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org

Annalee Newitz
Policy Analyst
Electronic Frontier Foundation
annalee@eff.org

Posted at 12:24 PM


June 13, 2005

Justice for Bloggers

EFF Announces its New Legal Guide for Bloggers

San Francisco, CA - The Electronic Frontier Foundation (EFF) is pleased to release a document that informs bloggers of their legal rights. EFF's "Legal Guide for Bloggers" is a collection of frequently asked questions (FAQs) designed to educate bloggers about their legal rights in a number of areas, including libel law, copyright law, and political advocacy.

There is still a lot of confusion about the legal status of bloggers. Are they journalists, due the protections of the reporters' privilege and heightened First Amendment analysis? Are they online service providers, who are generally exempt from liability for the postings of others? EFF's guide explores all of these roles and explains how the law may be interpreted in particular instances.

"Bloggers are a powerful new voice in public debates," said EFF Staff Attorney Kurt Opsahl, who coordinated the project. "The guide will help bloggers understand the basics about the laws that affect them so they can better protect and defend their rights."

EFF will add to the guide over the next several months, posting a section on how labor law may affect people who blog about their workplaces, as well as updates to the law as pending cases are decided.

In addition to publishing the guide, EFF has been involved in the fight to protect bloggers' rights by defending online journalists in the Apple v. Does case, in which Apple Computer, Inc., is trying to uncover the confidential sources for articles about an upcoming Apple product. EFF has also published a paper on how to blog anonymously, and, over the last few years, has advised many bloggers confronting legal issues.

Contact:

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

Posted at 01:44 PM


June 09, 2005

Fighting Infringement on Campus Peer-to-Peer Networks

New EFF White Paper Helps Universities Understand Their Options

San Francisco - With entertainment companies now suing thousands of college students for using the high-speed Internet2 network for filesharing, universities are under more pressure than ever to address the problem of copyright infringement on campus networks. In doing so, they must balance academic freedom with attempts to reduce infringement. To address the issue, the Electronic Frontier Foundation (EFF) today released a white paper exploring solutions. Entitled "When Push Comes to Shove: A Hype-Free Guide to Evaluating Technical Solutions to Copyright on Campus," the paper examines the benefits and drawbacks of several systems designed to combat infringement on university networks.

"The music and movie industries want schools to spy on their students and ban whole categories of computer programs from the learning environment," said EFF Staff Attorney Jason Schultz. "But there are ways to reduce infringement without undermining education and research. This paper explains what they are."

While the paper reviews specific tools such as AudibleMagic, PacketShaper, and the Automated Copyright Notice System (ANCS), it also explores educational and policy solutions. "When Push Comes to Shove" is a must-read for anyone who runs or uses university networks and cares about how the entertainment industry's lawsuits are affecting the future of these networks and the academic environment.

Learn more about filesharing.

Contact:

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org

Posted at 12:29 PM


June 08, 2005

Transparent Lobbying for E-voting Reform This Week

EFF to Provide Live Reports on Lobbying Blitz for E-voting Reform Bill

San Francisco, CA - Tomorrow and Friday, the Electronic Frontier Foundation (EFF) will provide a series of weblog reports on a two-day lobbying effort by a coalition of activist groups fighting for transparent, auditable electronic voting.

The lobbying "blitz" is aimed at supporting H.R. 550, the Voter Confidence and Increased Accessibility Act. This law would require electronic voting systems used in federal elections to generate a paper trail that could be verified by voters prior to their votes being cast. The coalition includes Common Cause, VerifiedVoting.org, VoteTrustUSA, VotersUnite.org, Rock the Vote, Working Assets, and other election-reform advocates.

More than 200 citizen activists from 25 states have signed up for the blitz, and have already set up at least 80 meetings with their representatives. The coalition will hold a lobbying training session for activists before they fan out across the Hill to lobby the House and Senate for the legislation, which is sponsored by Rep. Rush Holt (D-N.J.). On Friday, the coalition will hold a press conference with Rep. Holt, after which activists and lobbyists will be available for interviews, blogging, and podcasts, to talk about the importance of voter-verified paper trails.

EFF has more information about e-voting.

Contact:

Matt Zimmerman
Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

Posted at 05:48 PM


June 03, 2005

Tor Named One of the Year's Best Products

PC World Lauds Free, Anonymous Communication Tool as Superior to Paid Competitors

San Francisco, CA - PC World has included the Tor anonymous Internet communication tool in its list of the year's best products. Tor is being developed with support from the Electronic Frontier Foundation (EFF) and was previously funded by the US Navy.

The PC World review says, "[Tor's] onion routing service strips away information from Internet data packets that might reveal your identity while you are browsing. Tor goes a step further than paid competitors, anonymizing your email, IM, IRC chat, or any other TCP/IP network data."

"It's great to see Tor getting mainstream recognition, even as we continue to develop the system and make it easier for ordinary Internet users to protect their privacy," said EFF Technology Manager Chris Palmer.

Tor protects Internet users' privacy by allowing them to visit websites without revealing IP addresses and other tracking information that can be used to find out where individuals go and what they see online. Currently, many websites alter the information you see depending on what country you come from, your Internet provider, or whether you've previously visited the site. This tracking information is also stored by many websites and can be used to profile users, as well as made available to the government or private parties in litigation. More worrisome, the ability to track Internet users can create physical risks for those such as human rights workers and domestic violence victims. Tor protects against this sort of privacy invasion, called "traffic analysis," by obscuring the route your communications take through the Internet.

Contact:

Chris Palmer
Technology Manager
Electronic Frontier Foundation
chris@eff.org

Posted at 09:34 AM